Research › Browse › Judgment

Allahabad High Court · body

1998 DIGILAW 1228 (ALL)

RAI SAHAB SINGH v. UNION OF INDIA

1998-10-29

MAITHLI SHARAN, VIRENDRA SARAN

body1998
Rai Sahab Singh has preferred this Habeas Corpus writ petition challenging his continued detention in jail on the strength of the detention order dated 22nd December 1997 of the District Magistrate, Ambedkar Nagar passed under Sections 3 (2) and 3 (3) of the Na tional Security Act, 1980. 2. We have heard learned counsel for the petitioner, learned Government Ad vocate and the learned Standing Counsel for the Central Government and have perused the material placed on the record. 3. Learned counsel for the petitioner has submitted that there has been undue and unexplained delay in disposal of petitioners representation by the Central Government inasmuch as the petitioner had preferred his representation on 8-1-1998 and the representation was disposed of by the Central Government as late as on 6-5-1998. In this manner it took nearly four months for the Central Government to dispose of the representation. 4. Counter-affidavits on behalf of Union of India as well as State Government have been filed. The District Magistrate of Ambedkar Nagar has also filed his counter-affidavit. 5. It emerges from para 25 of the counter-affidavit of the District Magistrate that the representation of the petitioner dated 8-1-1998 was handed over to the Superintendent, District Jail on 10-1-1998. On 12- 1-1998 the District Magistrate called for para-wise comments on the representation from the Superin tendent of Police, Ambedkar Nagar. Comments of the Superintendent of Police were received by the District Magistrate on 22-1-1998 and thereafter on 31-1-1998 the District Magistrate forwarded the rep resentation to the Government of India, Home Ministry (Internal Security), North Block, New Delhi. According to the af fidavit filed on behalf of Union of India, this representation was received by the Central Government on 10-2-1998. No ex planation is forthcoming from the State why it took 10 days for the Superintendent of Police to send his comments. Similarly, the delay between 12-1-1998 to 22-1-1998 has remained unexplained. It appears that the representation was dealt with in a most casual manner and was not given immedi ate attention. We are at a loss to under stand why, if the comments of the Superin tendent of Police were received by the District Magistrateon 22-1-1998, the rep resentation still remained lying with the District Magistrate till 31-1-1998. It is also not known what happened, therefor, be tween 31-1-1998 and 10-2-1998. We are at a loss to under stand why, if the comments of the Superin tendent of Police were received by the District Magistrateon 22-1-1998, the rep resentation still remained lying with the District Magistrate till 31-1-1998. It is also not known what happened, therefor, be tween 31-1-1998 and 10-2-1998. The dates mentioned above make it clear that there has been lot of unexplained delay at the level of the District Magistrate in trans mitting the representation to the Central Government. 6. Adverting to the manner in which the representation was disposed of by the Central Government, a reference may be made to the counter-affidavit of Sri Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi. In paras 6 and 7 of the counter-af fidavit of Sri Bina Prasad it is stated that the representation was received by the Central Government on 10-2-1998 and certain vital informations were sent for from the State Government. This informa tion was available on 13-2-1998. There after there was a gap of another 10 days and the counter-affidavit says that on receiv ing said information on 13- 2-1998 the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 23-2-1998. The representation was con sidered by the Under Secretary who gave his comments and put up the same before the Joint Secretary and the Joint Secretary considered the same and put the repre sentation with his comments before the Minister of State for Home Affairs on 24-2- 1998. From 24-2-1998 this representation remained pending without any thing being done till 24-3- 1998. The explanation is that the P. S. to Minister of State for Home Affairs informed that the Minister is not likely to return before the formation of the new Government and hence the file remained pending. The af fidavit does not explain the delay. There is no explanation for the period intervening 13-2-1998 to 23-2-1998. Even after the new Home Minister had assumed office, the file was again put before the Deputy secretary on 24-3-1998 and in para 7 it is mentioned, "who considered the same and put up the case to Deputy Secretary on 24-3-1998, who carefully considered the same and with his comments put up the case to Joint Secretary on 8-4-1998. " There is absolutely no explanation for the delay of 15 days between 24-3-1998 to 8-4-1998. " There is absolutely no explanation for the delay of 15 days between 24-3-1998 to 8-4-1998. The counter-affidavit further mentions that the Joint Secretary put up the case before the Home Minister on 13-4-1998 and the Home Minister rejected the repre sentation on 6-5-1998. Thus, the file again remained pending for three weeks be tween 13-4-1998 to 6-5-1998 and there is no explanation for the intervening period. 7. From what has been mentioned above, it is clear that there is no explanation for the delay for forwarding the repre sentation at the level of the District Magistrate and there is also unexplained delay at the level of Central Government in disposing of the representation of the petitioner. In several cases the Supreme Court has observed that if there be unex plained delay in disposal of the repre sentation of the detenu, continued deten tion of the detenu becomes invalid. 8. The question as to whether the decision on the representation of the detenu could be delayed on the ground of non-availability of the Minister of State (Home) is tenable. On this point, during course of dictation of judgment today copy of a decision rendered by this Court in Writ Petition No. 8208 of 1998 on 28-10-1998 by a Bench consisting of D. P. Mohapatra, C. J. and R. R. K. Trivedi, J. was cited before us in which it was observed: "similar explanation given in other cases has been rejected by this Court on the ground that at the Centre there is always a Government and if Minister of Slate (Home) was not available, the matter could be placed immediately before the Home Minister as it was done later on. " 9. In a recent case of Mrs. Yenmathi Selvan v. State of Tamil Nadu and another, JT 1998 (4) SC 393, the Supreme Court has held that unexplained delay in considera tion of representation of the detenu renders the detention illegal even though the delay was not long. The Supreme Court observed: "the detenu had made a representation on 7-10-97. The Governors Secretariat received it on 14-10-97. It was despatched to the Government on 15-10-97. It called for remarks of the detaining authority on 17-10-97. The detaining authority in his turn called for remarks of the sponsoring authority on 21-10-97. The Supreme Court observed: "the detenu had made a representation on 7-10-97. The Governors Secretariat received it on 14-10-97. It was despatched to the Government on 15-10-97. It called for remarks of the detaining authority on 17-10-97. The detaining authority in his turn called for remarks of the sponsoring authority on 21-10-97. The sponsoring authority gave its remarks on 24-10-97 and they were forwarded by the Commis sioner of Police to the Government on 28-10-97. The representation was rejected by the Govern ment on 10- 11-97. The State Government was required to explain how it dealt with the representation between 15- 10-97 and 10-11-97. Ex cept stating that it called for the remarks of the detaining authority on 17-10-97 the Govern ment has failed to explain why it had become necessary to call for the remarks of the detaining authority. Even after an opportunity was given by the Court on 12-5-98 to the respondents to file a counter-affidavit dealing with the contentions raised in the S. L. P. the Government has failed to file any counter-affidavit and explain why it had called for the remarks of the detaining authority and what was the reason for not taking up for consideration the representation of the detenu from 21-10-97 till 10-11-97. Though the delay is not long it has remained unexplained. Though the delay by itself is not fatal the delay which remains unexplained be comes unreasonable. In spite of this well-settled legal position the State Government has failed to explain satisfactorily that it has dealt with the representation of the detenu as promptly as possible. It appears that oblivious of the correct legal position and its obligations in matters of preventive detention, it has dealt with the repre sentation of the detenu in a routine manner. This indifference of the Government is the cause for rendering the continued detention of the detenu illegal. We, therefore, allow this ap peal, quash and set aside the impugned order of detention and direct that the detenu be released forthwith unless his presence in jail is required in connection with some other case. " 10. Similar view was expressed by the Supreme Court in the case of Rama Dhondu Borade v. V. K. Saraf, Commissioner of Police. , 1989 (26) ACC 617 (SC): 1989 JIC 759 (SC ). " 10. Similar view was expressed by the Supreme Court in the case of Rama Dhondu Borade v. V. K. Saraf, Commissioner of Police. , 1989 (26) ACC 617 (SC): 1989 JIC 759 (SC ). In yet another Supreme Court case of Kundanbhai Dulabhai Sheikh v. District Magistrate, Ahmedabad, 1996 (33) ACC 319 (SC), the Supreme Court ob served: ". . . . . . . . we may immediately observe that this Court, in a large number of cases, has al ready laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained delay or un satisfactory explanation in the disposal of the representation would fatally affect the order of detention and in that situation, continued detention would become bad. " 11. The Supreme Court reiterated its earlier pronouncements in the cases of Mohinuddin v. District Magistrate, 1987 (24) ACC 495 (SC) and Rama Dhondu Borade (supra) and observed: "in Mohinuddin and Rama Dhondu cases, it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person illegal and unconstitutional. In Devi Lal Mahtov. State of Bihar, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days. " 12. Thus, it is settled law that unex plained delay in transmitting the representation for consideration as well as delay in disposing of the representation is fatal and renders the continued detention of the detenu illegal. As observed earlier, in the instant case there has been unexplained delay at the level of the District Magistrate in forwarding the representation to the Central Government and there has also been unexplained delay in disposing of the representation of the petitioner. 13. In view of what has been discussed above, the Habeas Corpus writ petition is allowed. Continued detention of the petitioner in pursuance of order dated 22nd December, 1997 of the District Magistrate, Ambedkar Nagar passed under Sections 3 (2) and 3 (3) of the Na tional Security Act is set aside. The detenu is in jail. He shall be released forthwith unless wanted in any other case. .